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AN ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE REALIZATION OF THE RIGHT TO HEALTH IN NIGERIA

ABSTRACT

Health is an important element of an individual life and also to the individual’s country. A country cannot develop with its citizens sick and dying. A healthy state is a wealthy state. As such, states must provide adequately for the health of its citizens. The research analysed international law and national legal framework that regulate the health system under international law and in Nigeria. It also examined health policies, institutions and other regulatory bodies established for the protection of the right to health in Nigeria. The research was informed by the dismal performance of Nigeria’s health care system when the World Health Organization assessed its 191 member states in terms of responsiveness, fairness, overall goal attainment, level of health expenditure per capita, impact on health and overall performance. Nigeria was ranked 187 out of 191 despite its human and natural resources compared with many other African countries which is indeed a cause for concern. This is evidenced from the high level of maternal and childhood mortality, HIV/AIDS related deaths which continue to ravage families and communities, the slow pace of attaining international goals for health and survival and negative progress towards attaining the Millennium Development Goals (MDGs).The research adopted as methodology the doctrinal approach which entailed the use of relevant literature including international instruments, reports and general comments/recommendations. Nigeria is a party to the major regional and international human rights instruments recognizing and protecting the right to health and has assumed tripartite obligations- obligations to respect protect and fulfill the right to health of the Nigerians. Right to health under the Nigerian Constitution is non -justiciable. However, non justiciability of the right to health is a challenge but not a bar to the protection of the said right. It does not also absolve Nigeria from its obligation to protect health of its citizens. The research finds that according health the status of non-justiciable right is not infact related to any inability to deal with socio-economic rights including the right to health as was exemplified with the experience of South Africa which has justiciable socio-economic rights including the right to health. It also finds that the debate whether or not the right to health exist or is non-justiciable is irrelevant as the Indian experience revealed. The research therefore, recommends the court to adopt judicial activism in adjudicating socio-economic rights including the right to health as is done in India. The research finds that Nigeria had put in place and established laws, policies and institutions for the protection of health of her citizens. The research also finds that several factors impede the realization of the right to health in Nigeria including legal impediments, socio-economic impediment and lack of political will on the part of the government. It is also a finding of the research that Nigeria is moving at a slow pace towards attaining the MDGs with less than a year to the target date. Although the research finds that some progress had been achieved especially in reducing childhood mortality and halting HIV/AIDS, the progress is not sufficient to meet the MDGs target date of 2015. The research finds that several key challenges exist which exercabates the slow pace at which Nigeria is moving towards achieving the MDGs notably among them are lack of reproductive health care services, poverty, low socio-economic status of women, inequities in the distribution of human health resources which if addressed will come a long way in helping Nigeria to move faster towards achieving the MDGs and subsequently in fulfilling its obligations under the right to health.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study
Health is important for every human being in the world. It is an important matter for individuals and states. It is a fundamental human right indispensable for the exercise of other human rights. This can be seen in the impact the denial or enjoyment of other rights can have on a person‟s ability to achieve the highest attainable standard of physical and mental health and, conversely, the role health plays in our enjoyment of other rights.1A person in bad health cannot live life to the fullest. Enjoying good health therefore, is a prerequisite to the enjoyment of other human rights. For instance, a sick person can work to earn a living, go to school and be educated therefore leading life to the fullest and ultimately contribute to the development of his country. Denying people good health care is to deny them the right to life as good health is an indispensable element of life.
Also, social and economic development is closely tied to good health. A country cannot achieve economic growth and development with sick and dying population. As such, for any country to achieve development, it must take care of its citizen‟s health. The World Health Organization (WHO) recognizes the international human right to health in its Constitution by stating that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”2
This has led to global debate to focus on the human right to health which now occupies a prominent place on the agenda of the international community. Given the importance of
1Byrne, I. (2005). Making the Right to Health a Reality: Legal Strategies for Effective Implementation A Paper presented at the Common Wealth Law Conference, London, Sept 2005 Retrieved 13/08/13 from http:www.escr-net.org/docs/i/421042 2 Preamble to the World Health Organization Constitution (WHO)1946, opened for signature 22 July 1046, 62 Stat. 6279, 14 UNTS 185 (WHO Constitution)
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health as a vital feature of the human condition, health has been recognized as a human right in numerous international documents and every country in the world is a party to at least one human right treaty that protects health either directly or indirectly.
However, right to Health which is rooted under International Covenant on Economic, Social and Cultural Rights (ICESCR) has for long been objected to, and still suffers from marginalization. Although Civil and Political Rights and Economic, Social and Cultural Rights (ESCR) are said to be interdependent, interrelated and of equal importance,3 there is the tendency on the part of the Western states (e.g. United States of America) to accord more significance to Civil and Political rights.4 This is attributed to the language in which the ICESCR is couched which makes its contents to be regarded as non-justiciable, vague and regarded as „general directives for states rather than rights.5 In this regard, the right to health shares the same fate with Economic, Social and Cultural Rights (ESCR) which are also recognized in international treaties and whose meaning is only gradually being clarified.6
Countries whose legal systems are based on English Common Law generally do not provide constitutional guarantees regarding the right to health7, though implicit references to public responsibilities for health can be found in the preambles to many constitutions, and in some of the content regarding social policy.8 The United States, for example, does
3 Art. 5 of the Vienna Declaration states: “All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms” 4Art 2(1) International Covenant on Economic, Social and Cultural Rights (ICESCR) 5Toebes, B.(1999).Towards an Improved Understanding of International Human Right to Health. Health and Human rights Vol. 23 No. 3 pp. 661-679 6 Leary V. A. (1994).The Right to Health under International Human Right Law in Health and Human Rights Vol. 1 No. 1 p 27 7With the exception of South Africa which has its own progressive constitution reflecting the values of the pluralist, egalitarian and democratic state that replaced apartheid in 1994. 8Nigeria, Ghana and Uganda.
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not include any reference to health in its Constitution. However, countries with socialist constitutions incorporate the right to health as a fundamental right, along with all other economic, social and cultural rights.
Health in Nigeria is protected in the Constitution under the Fundamental Objectives as objective statement on certain socio-political, economic, and cultural issues meant to guide the government in the formulation of policies. The security and welfare of the Nigerian state being of paramount importance of the government,9 the Constitution places a duty and responsibility on all “organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions”10 of the fundamental objective. Health in Nigeria is also protected in other legally binding legislations and regional instruments which Nigeria has domesticated. Nigeria has also established institutions that seek to protect the health of its citizens. However, the health status of Nigerians is said to be in a deplorable state. It is against this background that this dissertation seeks to make an analysis of the legal and institutional framework on the realization of the right to health in Nigeria. 1.2 Statement of problem
Health is an important and beneficial asset for individual for them to lead a productive life. Until recently, health was considered as the private affair of individuals rather than the state as “issues related to the health of population and the availability of health care was not considered to be major social or governmental concern.”11However, the health of the population is now considered important for the state for any progress and development to be achieved. This acknowledgement “reflects a broadened sense of
9S. 14 (2) (b) Constitution of the Federal Republic of Nigeria 1999 as amended (1999 Constitution FRN) 10 S. 13 Ibid 11Ladan, M. T. (2006). Introduction to Jurisprudence: Classical and Islamic Malthouse Press Ltd p.322
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governmental responsibility for the welfare of its citizens and a more inclusive understanding of human rights.”12
The realization of the right to health can be achieved through many complimentary approaches such as formulation of policies, implementation of health programmes or the adoption of specific legal or international instruments.13 The Nigerian Constitution14 recognizes and protects health in a non-justiciable context under chapter II (Fundamental Objectives and Directive Principle of State Policy). The constitution establishes a state policy of ensuring the adequate provisions of medical and health facilities for all15 and also ensuring that the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused.16 The security and welfare of the citizens being of paramount importance, the Constitution places a responsibility on all organs of government to conform, observe and apply the provisions enshrined under chapter II.17 Nigeria is also a party to major international and regional treaties protecting the right to health including the African Charter on Human and Peoples Rights.18
However, despite the legal framework put in place for the protection of health in Nigeria, the health system is said to be in a deplorable state. For example, in 2000, the World Health Organization (WHO) assessed the performance of its 191 member states in terms of their responsiveness, fairness, overall goal attainment, level of health expenditure per capita impact on health and overall performance, Nigeria was ranked 187 out of the 191
12Ibid 13 Aniekwu, N. I. (2006). Health Sector Reform in Nigeria: A Perspective on Human Rights and Gender Issues, Local Environment: The International Journal of Justice and Sustainability 11:1 p. 128 14Constitution of the Federal Republic of Nigeria 1999 as amended (1999 Constitution) 15 S. 17 (3) (c) 1999 Constitution 16S. 17 (3) (d) Ibid 17S. 13 Ibid 18African Charter on Human and People‟s Rights Adopted 26th June, 1981,O.A.U Doc.CAB/LEG/67/3 Rev. 5 Entered into force 21 Oct. 1986. Nigeria signed on 31 Aug. 1982 and ratified in 1983.
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states.19The situation has not changed as in 2011, the United Nations Development Programme (UNDP) ranked Nigeria‟s health 156 out of 187 despite Nigeria‟s resources. In 2012-2013, the World Economic Forum (WEF) ranked Nigeria 142 out of 144 in terms of its health and primary education performance.20This is evidenced in the Nigerian health status for example, the Human Development Report 2013 showed that Nigeria‟s life expectancy at birth was 53.3 years.21This figure is said to have declined due to the rampant spread of HIV/AIDS in the country.22Women continue to die as result of child birth needlessly. The Millennium Development Goals 2013 Report showed that there is a decline in maternal mortality from 545 in the 2008 NDHS23 Report to 350 deaths per 1000 live births.24Although there is a decrease in childhood mortality, Nigeria still has a long way to go to achieving the Millennium Development Goal 4 (MDG 4) of reducing the under 5 mortality to 64 deaths per 1000 live births.25 HIV remains a threat to the population‟s health in Nigeria as it continues to strain the struggling health system and reverse many developmental gains of the recent past including maternal and Under 5 mortality.26 Nigeria carries the second highest burden of HIV in Africa having an expanding population of people living with HIV (PLHIV).27Malaria continues to be a public health concern that Nigeria is battling with.28 The dismal performance of Nigeria in spite of its natural resources in comparison with most African states must be a cause for concern. These high levels of morbidity and mortality and negative progress toward
19 World Health Report 2000: Health Systems, Improving Performance, WHO, Geneva.
20 Nigeria Global Competitive Index: Health and Primary Education 2006-2012 Retrieved on 05/11/14 from www.slideshare.net/statisense/nigeria-global-competitive-index-health-and-pry-education-2006-2012 21 Human Development Report 2013 Retrieved on 15/11/14 from hdr.undp.org/sites/default/files/country-profiles/NGA.pdf 22Nigeria: Millennium Development Goals 2013 Report p. 33 23Nigeria Demographic and Health Survey 2013 Preliminary Report (NDHS Preliminary Report 2013) National Population Commission, Nigeria, MEASURE DHS, ICF International Calverton, Maryland, USA 24Millennium Development Goals 2013 Report p. 33 25 NDHS Preliminary Report 2013 p. 19 26National Agency for the Control of AIDS (NACA), Federal Republic of Nigeria Global Aids Response: Country Progress Report GARPR 2012, Abuja Nigeria (NACA: Global Aids Response) p. 11 27 Ibid p. 10 28 Nigeria: Millennium Development Goals 2013 Report p. 46
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the attainment of national and international goals for health and survival are living testimonies that the Nigerian health system has failed to contribute to national development goals.29 Significant questions therefore, arising from these issues which must be addressed are:
1. What is meant by the right to health under international law and what are Nigeria‟s obligations in protecting the health of its population under international law?
2. What are the linkages between health and human right?
3. Does the absence of direct recognition of the right to health in the Constitution mean that the right is totally unprotected? / Is non justiciability necessarily a bar to the applicability and enforcement of the right to health in Nigeria?
4. What are the legal, institutional and policy frameworks put in place for the protection of health in Nigeria?
5. What are the challenges for the realization of the right to health in Nigeria?
1.3 Aim and Objectives of the Research The aim of this research is to underscore the role of law in promoting and protecting the right to health in Nigeria drawing from global and regional experiences. This is with the view of realizing the following objectives:
i. to examine the international provisions and national legal framework on health and the institutional framework regulating the health system in Nigeria and also to
29Aniekwu, N. I. (2006) op.cit fn 13 p. 137
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examine Nigeria’s obligation under international law with respect to the right to health;
ii. to examine the application and enforcement of the right to health in Nigeria drawing from other jurisdictions with justiciable and non-justiciable right to health;
iii. to examine the role of law in the protection of the right to health in Nigeria; and,
iv. to establish findings upon which recommendation would be made.
1.4 Scope of the Research
The concept of right to health is broad and wide and embraces entitlements which can be broadly categorized into health care and the underlying determinant of health. Health care consist of functioning facilities and services necessary for health e.g. health services provided at clinics, availability of hospital, doctors, nurses drugs etc. while the underlying determinant of health includes adequate food, safe portable drinking water, housing, education, adequate sanitation facilities e.tc.30 Health care and the underlying determinant of health are interlinked and of equal importance. However, this research will only examine and analyze the legal and institutional regime on the right to Health Care in an attempt to answer the research questions posed above. 1.5 Research Methodology
The research adopted the doctrinal methodology. The source of data will be both primary and the secondary sources. The primary sources consist of the International and Regional Instruments and consensus agreements, the Constitution of the Federal Republic of Nigeria 1999 as amended, legislations and policies for the protection of health in Nigeria,
30 United Nation CESCR General Comment 14 ” The right to the Highest Attainable Standard of Health” (herein General Comment 14) (Twenty-Second session, 2000), U.N.DOC.E/C.12/2000/4 Para 11
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case law that have bearing on right to health. The secondary sources on the other hand was used to lay down the theoretical and philosophical background and consists of the use of textbooks, scholarly articles in Journals, seminar and conference papers and literature sourced from the internet. The research also utilized secondary sources such as Nigeria Demographic Health Survey 2013 Preliminary Report (NDHS 2013), Multiple Indicator Cluster Survey 4 Report 2011, Nigeria MDG Country Report 2013, and National Agency for the Control of AIDS Country Progress Report 2012, Publications from the Federal Ministry of Health, Federal Ministry of Women Affairs and Social Development. 1.6 Justification of the Research
Health provides both the foundation for a just and productive society and the cornerstone of an individual’s chance to develop his or her full potential. A population that is not healthy cannot learn, cannot work and cannot develop. The concept of ”right to health” implies that fundamental principle of human rights i.e. dignity, nondiscrimination, participation and justice are relevant issues of health care and health status. This research is relevant because for any state striving to attain economic growth and development cannot do so with sick and poorly nourished dying population and therefore has to make adequate legal provision for the health of its people. No state can maintain a steady economic growth in the absence of an adequate health care system as in the words of Amartya Sen ”among the different forms of intervention that can contribute to the provision of social security the role of health care deserves forceful emphasis … a well-developed system of public health is an essential contribution to the fulfillment of social security objectives.‟‟31 These therefore, are the justification.
This research will be of great benefit to the academic circle, policy makers of the right to health, NGOs working on the right to health and the Nigerian populace at large.
31Asher, J. (2004). The Right to Health: A Resource Manual For NGOs Common Wealth Medical Trust
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1.7 Literature Review Literature review assists the researcher to focus on works already done related to the area of research on specific issues and to identify the gaps in knowledge which the researcher seeks to fill. Therefore, the aim of this research is to examine the normative framework of the right to health as it developed under international law and its relevance to Nigeria. The research is also aimed at examining the legal and institutional protection of the right to health in Nigeria and also the effectiveness of the institutions applying the legal framework. The research also aimed at examining the implementation of the right to health in Nigeria taking the MDGs 1(eradicating extreme poverty and hunger), 2 (achieving universal primary education), 3 (improving gender equality and women‟s empowerment), 4,(reducing childhood mortality), 5 (improving maternal health)and 6 (combating HIV/AIDS and malaria and TB) as a case study.
There is a rich literature on the subject which the present research found useful and relevant. Of significant relevance is the work of Mann, J. in his article Health and Human Rights32 Mann in this work examined the inextricable link between health and human rights and also analyzed the framework for the right to health. This work however, analyzed the right to health in international law and the linkages of health and human rights without contextualizing it to any state. This present research contextualizes the right to health to Nigeria.
Of equal significance is the article of Leary, V. titled the right to health under international human right law.33Leary examined in depth the legal framework for the right to health in international law and also delved in detailed on the normative
32Mann, J.

 

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